Free Expression

It’s two centuries since the passage of the First Amendment and our presidential candidates still cannot distinguish establishment from free exercise. ~Charles Krauthammer

It seems clear to me from the article that it is exactly these things that Krauthammer seems unable to distinguish, or rather he seems unable to understand that they do not even apply to the role of religion in this campaign. The establishment clause concerns a prohibition against any law establishing a religion at the federal level in the United States. That is what it meant and what it still means. It is elementary, which is why it is tiresome that so few people seem to grasp that this has nothing to do with expressions of public opinion or political preferences. The hollowness of the objection Krauthammer and others are raising is evident once you notice that the only kind of political judgements about someone’s religion that they really find unacceptable is a negative one. They may find positive judgements in favour of a candidate on account of his religion undesirable, but they do not usually make an issue out of it.

If voting is an exercise of political speech (it is), and freedom of speech is guaranteed under the same First Amendment, there is nothing illicit or impropr in exercising that freedom, so long as it does not endanger public safety under very specific circumstances and conditions (e.g., inciting to riot, etc.). The implicit complaint in this debate is that somehow disapproval of a candidate’s religious beliefs is a curtailment of that candidate’s religious liberty, which is not true. The argument seems to be that free speech should, as a matter of practice and custom, end where there are strong disagreements and that this applies only to questions of religious difference, which I think is an appalling idea. Mind you, this is not a violation of anyone’s First Amendment rights, because it is not the government that is trying to impose this rule. Nonetheless, it is a very deliberate attempt to stifle one particular kind of political expression through the deployment of social pressures and the implied or explicit accusations of prejudice. Conservatives who rebel against the principle of thought-policing rules on campuses and elsewhere should reject this argument, which is based on the same principle. All thhose who constantly tell us how interested they are in intellectual diversity and open debate should have no problem with a debate that also includes religious beliefs. If voters believe these things are irrelevant, they are perfectly capable of selecting candidates who do not engage in this kind of politics.

What is so frustrating about this debate is that neither establishment nor the free exercise of religion is at stake here. Religious liberty is not endangered, and no one is proposing an established religion. We do indeed live in an increasingly religiously diverse society. It seems bizarre that this would be the one aspect of our society that we would refuse to talk about in our political discourse.

I think Krauthammer is confusing First Amendment principles with the Article IV, Section 3 provision that “…no religious test shall ever be required as a qualification to any office or public trust under the United States” - he mentions that in passing, and seems to regret that it doesn’t extend to the decisions of voters. What he seems to most lament is that certain politicians are encouraging voters to apply a religious test, prior to considering any substantive issues, in which case you are correct that he’s not describing a First Amendment issue. Nothing in the First Amendment would prohibit a candidate for elected office from saying, “Vote for me, because I’m a man of faith” - quite the opposite.

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